Citation Nr: 20008516 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 14-39 890 DATE: January 31, 2020 ORDER The claim of entitlement to service connection for an acquired psychiatric disability is denied. REMANDED The claim of entitlement to service connection for diabetes is remanded. The claim of entitlement to service connection for cataracts is remanded. The claim of entitlement to service connection for erectile dysfunction is remanded. The claim of entitlement to service connection for the residuals of stroke is remanded. The claim of entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran is not diagnosed with an acquired psychiatric disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to October 1952. 1. The claim of entitlement to service connection for an acquired psychiatric disability is denied. The Veteran asserts that he has posttraumatic stress disorder (PTSD) and depression as a result of his service. Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires that PTSD be diagnosed pursuant to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 5th ed. (2013), (DSM-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. VA implemented use of the DSM-5 effective August 4, 2014, and the DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45, (Aug. 4, 2014). The Veteran’s claim was certified in late November 2015, and therefore the DSM-5 applies. The Veteran asserts that his PTSD is from his combat experience in Korea. In a March 2012 statement, he reports having witnessed soldiers killing civilians, including children, about which he still has nightmares. He asserts he has feelings of depression, anxiety, mental disturbance, difficulty sleeping, suicidal ideation, hallucinations, and paranoia. He reports having vivid memories of his experiences in Korea. The Board notes that the Veteran is in receipt of the Combat Infantry Badge, and his stressors have been conceded. The record does not reveal that the Veteran has a current diagnosed acquired psychiatric disability. His treatment records do not show diagnosis, treatment, or persistent symptoms of any acquired psychiatric disability. VA treatment records from August 2019 show he denied having depression. In May 2018, June 2017, and July 2016, PTSD and depression screens were negative. In February 2016, he was noted to have anxiety, which was attributed to an upcoming surgery. VA treatment in November 2012 and December 2011 shows he denied having depression, anxiety, trouble sleeping, or mental disturbance. The Veteran had a VA examination in October 2011. That examiner indicated review of the file, and did not find that the Veteran met the diagnostic criteria for PTSD, or for any other acquired psychiatric disability. The examiner indicated the Veteran had been exposed to a wide range of traumatic stressors during his service, but that he did not persistently reexperience the event, did not show persistent avoidance of stimuli associated with the trauma, did not show persistent symptoms of increased arousal, and did not demonstrate clinically significant distress or impairment in social, occupational, or other important areas of functioning because of his trauma. The examiner indicated the Veteran denied having any psychiatric symptoms on direct inquiry, except for chronic sleep impairment, which the Veteran attributed to his pain from other disabilities. The Veteran was given another VA examination in June 2019 with a different VA examiner, who also did not diagnose any acquired psychiatric disabilities. She indicated that he readily engaged in the evaluation process, his mood was euthymic, his affect cheerful, and he was fully oriented. The examiner indicated having reviewed the Veteran’s statements filed in connection with the claim and his medical records. She noted that his treatment records did not contain any complaints or diagnoses, but did contain multiple negative screens for PTSD and depression. He reported having trouble sleeping due to compression socks that he must wear for diabetes that cause leg pain. He reported having “crazy dreams” about “all different things,” but specified having intrusive thoughts of his service trauma. He reported avoiding conversations about his trauma. However, he also reported having no trouble being around other people, and that he gets along well with most people. He reported enjoying going to events, like sporting events, and denied having trouble being inside large stores like Wal-Mart. The examiner opined the Veteran met PTSD diagnostic criteria A, B, and C (experiencing a traumatic event, intrusion symptoms associated with the events, and persistent avoidance of stimuli associated with the events), but not D through H (negative alterations in cognitions and mood associated with the events, marked alterations in arousal and reactivity associated with the events, duration of disturbance for more than one month, disturbance causes clinically significant distress or impairment, and the disturbance is not attributable to the physiological effects of a substance). She also opined that he did not meet the diagnostic criteria for any other acquired psychiatric disability. Based on the above evidence, the Board finds the preponderance of the evidence weighs against finding that he has had an acquired psychiatric disability during the appeal period. The Board has considered the Veteran’s statements asserting that he has ongoing symptoms of an acquired psychiatric disability. He is competent to report to his own mental health symptoms. However, he has not been shown to have the training or expertise to competently opine on whether he meets the diagnostic criteria for an acquired psychiatric disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Indeed, he has been given two VA examinations, neither of which diagnosed an acquired psychiatric disability. Accordingly, the Board finds his statements to be less probative than the medical evidence showing that his symptoms do not meet the diagnostic criteria for any acquired psychiatric disability. The Veteran disputed the findings of the October 2011 VA examination, and asserted that the examiner did not conduct a thorough examination. He alleged that the examiner only briefly spoke with him and fabricated his finding that the Veteran had no diagnosis. Specifically, he disputed that he ever having denied having “depression, anxiety, mental disturbance, difficulty sleeping, suicidal ideation, hallucinations, or paranoia” to anyone. The October 2011 VA examiner did not make this statement; rather, the RO made this finding in the February 2012 rating decision regarding the evidence contained within the Veteran’s VA treatment records. The October 2011 VA examiner indicated the Veteran denied having any psychiatric symptoms except for chronic sleep impairment, which is noted on the report. But the Veteran told both the October 2011 and June 2019 VA examiners that his sleep trouble came from other disabilities, which supports the October 2011 VA examiner’s statement that he denied having any psychiatric symptoms. To the extent that the Veteran is arguing that the October 2011 VA examination report is not detailed, the Board agrees that it does not contain information that would be helpful and relevant, such as the Veteran’s demeanor during the interview, his observed behavior, whether he made eye contact, and his engagement level in the process. For this reason, the Board finds the October 2011 VA examination report less probative than the June 2019 VA examination report. However, given the consistency between the two reports, and the failure of the record to demonstrate any persistent complaints by the Veteran of any mental disturbance, the Board does not find that the Veteran has shown that the October 2011 VA examiner fabricated his findings. The Board finds that the October 2011 and June 2019 VA examinations are adequate for adjudication, when read in conjunction with one another, as the resulting reports were based on reviews of the record and interviews with the Veteran. The Board notes that the Veteran has not disputed the findings of the June 2019 VA examination, which reaffirmed the findings from the October 2011 VA examination. The Board notes that the Veteran was most recently notified by the November 2019 supplemental statement of the case (SSOC) that his claim was denied because he did not have a current diagnosis. To date, no evidence of a current diagnosis has been received. As the preponderance of the evidence weighs against finding the Veteran having a currently diagnosed acquired psychiatric disability that is related to his service, this claim must be denied. 38 U.S.C. § 1110; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim). REASONS FOR REMAND 1. The claim of entitlement to service connection for diabetes is remanded. The Board’s June 2018 remand directed that a medical opinion be obtained as to whether the Veteran’s diabetes is related to cold injury that he asserts he suffered in Korea, or to service in general, which was not done. On remand, this must be remedied. The Board notes the Veteran reported receiving treatment for his cold injury at the military hospital in Japan. The record shows he was in Yokohama, Japan, following service in Korea. On remand, a request will be made for any records of inpatient treatment that may be outstanding. 2. The claim of entitlement to service connection for cataracts is remanded. 3. The claim of entitlement to service connection for erectile dysfunction is remanded. 4. The claim of entitlement to service connection for the residuals of stroke is remanded. 5. The claim of entitlement to service connection for hypertension is remanded. These claims are inextricably intertwined with the Veteran’s claim for service connection for diabetes. Accordingly, they must also be remanded. The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. Obtain any service records of inpatient treatment at the military hospital in Yokohama, Japan, starting from February 1952. 3. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) the Veteran’s diabetes is caused or aggravated by the Veteran’s service, including the residuals of a cold injury. (“Aggravated” means to have caused any increase in the severity that is beyond the normal progression of the disease). The Veteran asserts he suffered cold injuries to the hands and feet during service in Korea. The record shows he was in Korea during some winter months, but his STRs do not show a cold injury. The Board notes this is not dispositive of the issue, but may be a factor in rendering the requested opinion. The Veteran asserts that he has deformities of the hands and feet because of these injuries, and that his diabetes incepted in the 1960s. He asserts he has read research showing that Korean War veterans that suffered cold injuries have a high rate of diabetes. The examiner is asked to elicit from the Veteran a detailed history of his cold injury and the inception of his diabetes. The examiner is asked to conduct a review of the relevant literature and provide an opinion on the likelihood that the Veteran’s diabetes is from such a cold injury, or to service in general. All opinions must be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.